My articles emerge depending on what ever tickles my fancy; hope you enjoy the ride. It started several years ago when one of my op-ed pieces to the Houston Chronicle got butchered; been blogging ever since.

Wednesday, October 05, 2011

Ring, Ring - This is a Police State

Yesterday my attention was drawn to an article written by Buck Sexton which appeared on
The Blaze, “Calif. Appeals Court Approves Cell Phone Searches During Traffic
Stops”.I didn’t know cell phones were that big a
deal; okay, maybe we shouldn’t text while shifting and most of us would agree
that hands free is better than having half your field of view blocked.

“In a case explicitly decided to set a precedent, the
California Appellate court has determined police officers can rifle through
your cellphone during a traffic violation stop.”

There is a problem with granting police powers which extend
beyond protections built into a citizen’s God given right as covered under the
4th Amendment.

“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”

Times may have changed since this wonderful document was
penned; however, the intent to protect a person’s “papers and effects”, which
would now include digital information housed in any number of devices, shall
not be violated.Police officers have
been empowered to enforce the law and when needed to search suspects for
weapons or illegal contraband; but have never had the power to go on “fishing
expeditions” under the color of “inventorying” a prisoner’s property.

Speaking from the standpoint of a retired police officer,
the rules of evidence were put in place to secure individual rights; not to
empower a police state.Items found
during a lawful inventory which were clearly prohibited such as weapons or
illegal substances could be entered into a court of law as evidence; however,
there is a limit to what can be considered “in plain view” or what items might
be considered “hazardous” and a risk to the safety of either the public in
general or the officer’s immediate safety.

“On December 6, 2009 Reid Nottoli was pulled over for speeding by Santa Cruz
County Deputy Sheriff Steven Ryan. Sheriff Ryan then suspected after pulling
Nottoli over that the 25-year-old was under the influence of drugs.

As Nottoli’s license was also expired, the Sheriff decided to impound the
vehicle. Nottoli requested to leave his car parked on the side of the road.
Sheriff Ryan refused, and decided to conduct an “inventory” search prior to the
towing.”

Up until this point the police were acting in the interests of the public,
taking the suspect into custody as a possible DUI and an expired driver’s
license is a lawful arrest.The officer
was obligated by law to inventory items in the suspect’s vehicle prior to
having it towed to an impound; again, for the benefit of the suspect and to
protect the officer from unwarranted accusations of theft or neglect in the
event items later turned up missing or were claimed to be missing.

“A fully legal Glock 20 pistol with a Guncrafter Industries 50 GI conversion
that should have been stored in the trunk of the vehicle. He also noticed
Nottoli’s Blackberry Curve which, after it was turned on, displayed a
photograph of a mask-wearing man holding two AR-15 rifles akimbo.”

Aside from that first sentence being incomplete, the court was informed that
a legal weapon was found during the inventory.Depending on the laws in California
the officer either would file additional charges for improperly transporting a
weapon or, since this was a lawful weapon, the officer might have stored the
weapon in a proper manner until such time as the suspect was released.

Pay attention; this is where the court has stepped over the line and
violated the 4th Amendment rights of every citizen via this one
case.The officer stated the suspect’s cell
phone was not on during the inventory process; this was not a “search
incident to arrest”.The officer turned
the cell phone on and at that time observed a photograph which caused him to
believe photographs contained therein may link the suspect with an unrelated
crime.

Read the intent of the 4th Amendment once again.

“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”

If the officer stated he feared for his personal safety or
perhaps the phone was hollow and contained illegal drugs it might have been
reasonable to play with it.If the
suspect could be connected with terrorist activities in which cell phones were
used to trigger explosive devices from a remote location; at that moment the
officer might have the authority to turn on the device even if such actions
would be fool hearty considering the possibility that the simple act of
activating the cell phone might be enough to trigger an explosive device
depending on how it was programmed.

Idle curiosity caused the officer to turn the cell phone on;
nothing more.No warrant could be
obtained under such circumstances regardless of what images where presented to
the officer’s view since he had to turn the device on when it was no threat in
its present state.There was no probable
cause to believe the officer was arresting anyone but a DUI traffic violator
who failed to secure a legal weapon in the trunk.

“…the appellate court’s decision, written by Franklin Elia, which read in
part:

“The deputies had unqualified authority under Gant (*) to search the
passenger compartment of the vehicle and any container found therein, including
Reid’s cell phone. It is up to the US Supreme Court to impose any greater
limits on officers’ authority to search incident to arrest.”

“This case demonstrates
that the scope of exception to the Fourth Amendment’s protection against
governmental searches and seizures relating to searches incident to arrest is
still unclear. Both parties address Belton’s bright-line rule to the
Fourth Amendment allowing warrantless vehicular searches incident to a lawful
arrest. If the Supreme Court adopts Arizona’s
position on Belton, police will have broad discretion to search the
vehicle of any arrestee, subject only to the limitation that the arrestee was a
“recent occupant” of the vehicle. A decision for Gant, on the other hand, would
require an officer to reasonably fear for his safety or the integrity of the
evidence before he could search an arrestee’s vehicle without a warrant. In
either case, the Supreme Court’s decision may further define the extent of
police authority to perform warrantless vehicular searches incident to a lawful
arrest.”

I’m sorry Franklin Elia, opening a closed container which may or may not
hide from plain view weapons or contraband is not the same as opening a closed
digital file belonging to a citizen.This no different than extracting information directly from the
suspect’s mouth and is most definitely a violation of the 4th
Amendment.

As a concerned citizen and retired police officer it is my duty to uphold
the Constitution of the United
States.In the long run we are trading security for liberty; and those who do so
deserve neither security nor liberty; isn’t that what Benjamin Franklin
warned?

Our judiciary system is being
used to transform America
into a police state; troubling to say the least.The rule of law which holds our society
together appears to have been abandoned in favor of the police state.Our founding documents and the limits placed
on government act to protect individual God given rights.Our courts now act with impunity violating
individual rights, and with each new decision advance the notion that such
actions are justified; not by our Constitution but through each amended court
decision linked one upon the other.It
would appear we have already become subjects of the state rather than citizens.

“We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty
and the pursuit of Happiness. — That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed, — That whenever any Form of Government becomes destructive of these
ends, it is the Right of the People to alter or to abolish it, and to institute
new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their Safety
and Happiness.”

This article has been cross posted to
The Moral Liberal, a publication whose banner reads, “Defending The
Judeo-Christian Ethic, Limited Government, & The American Constitution”.

3 comments:

I just got a note from Steve Farrell, managing editor of The Moral Liberal; said this article had over 1300 reads in the past two days. Nice to see somebody is reading my work, even if it isn't here at my blogsite.

About Me

I am a retired City of Houston Police Officer having served 20 years as a patrol officer. I am currently self employed as an automotive locksmith. I am a member of the Church of Jesus Christ of Latter Day Saints. I am married to my first and only sweetheart. We met while working at the Astrodome; she was the popcorn girl and I was the soda boy, both working in the back areas during our high school years.
We have 3 grown children and two grand children.